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Workplace Discrimination Suits Up 7.2% in 2010

Source: NY Times

Posted on 12 Jan 2011

More and more workers are accusing their employers of discrimination, a report from the Equal Employment Opportunity Commission (EEOC) said on Tuesday.

Accusations of workplace discrimination — which workers file with the commission when they think they have been unfairly treated based on their race, sex or other so-called protected categories — soared to 99,922 in the year ended Sept. 30, from 93,277 in the previous year. That was an increase of 7.2 percent, and the highest level of new discrimination cases ever recorded.

“Discrimination continues to be a substantial problem for too many job seekers and workers, and we must continue to build our capacity to enforce the laws that ensure that workplaces are free of unlawful bias,” the commission’s chairwoman, Jacqueline A. Berrien, said in a statement.

The largest increase was from people who said they had been discriminated against because of a disability, an increase that may be linked to recent changes in the legal definition of disability to make it more expansive. The Obama administration’s growing reputation of greater interest in discrimination cases than its predecessor may also have increased filings.

But experts say the chief reason for the increase in accusations of prejudice is most likely tied to the broad layoffs of the last few years.

“The uptick in E.E.O.C. complaints is directly correlated to the downtick in employment,” said Michael J. Zimmer, a professor of employment law at Loyola University in Chicago. “The people who think they’re discriminated against when they’re not terminated really think twice about whether they should file a charge or not because of the hassle and possibility of retaliation. But once they’re terminated, then for most of the private sector employees in this country who are at-will employees, the only way they can challenge their dismissal is by bringing a discrimination claim of some sort.”

A similar rise occurred in the aftermath of the 2001 recession. And then, as now, the number of complaints that accused an employer of an improper firing rose. Meanwhile, the number of sexual harassment cases has fallen since the recent recession began, perhaps because workers could be reluctant to rock the boat because they know that finding a replacement job is so difficult.

Employers, on the other hand, contend that many of the discrimination cases filed with the commission are spurious attempts by workers with no job opportunities who have not experienced discrimination. They point to the fact that the number of enforcement suits that were eventually filed by the commission and resolved in the federal courts declined last year, to 271 from 314.

“The majority of the time, the E.E.O.C. is still finding no reasonable cause for the charges being filed,” said Michael S. Burkhardt, an employment partner in the Philadelphia office of Morgan, Lewis & Bockius who represents employers in discrimination class-action suits. “In some cases, people are just upset that they were terminated, and they happen to be in a protected category. Even if that has nothing to do with why they were terminated, they still file a charge.”

He added that employers have had to become increasingly careful about how they structure layoffs when they reduce their work forces, as many have done since the financial crisis began several years ago.

“I think what happens is that there is a lot of increased anxiety and a sense of insecurity in the workplace that comes from a bad economy, and the potential layoffs that might take place. In some cases people might file a discrimination charge if they think they’re about to be laid off,” he said, because workers who have filed discrimination charges with the E.E.O.C. are legally protected from retaliation by their employers and can therefore be harder to dismiss.

Workers themselves argue that a poor job market has brought out the often hidden prejudicial side of employers who can afford to be especially picky in selecting employees. Women believe they are being passed over in favor of men, blacks believe whites and Hispanics are taking their jobs, and older workers say fresher faces are having better luck in the job market at the expense of their elders.

“I think there’s age discrimination from these companies because they don’t want an old body and old face fronting for them,” said Terry K. Nance, 76, of Charlottesville, Va., who has been unable to find retail work for the last year and a half. “No, they’d never say it, but you can tell it’s the case. When I go back in and I shop these same places I’ve applied to and never heard back from, I see younger faces in there all the time. It’s a revolving door of young people.”

Comments

The year just ended was a seismic one for employment-related class action litigation, paving the way for more far-reaching judgments, court rulings, and changes to class action law in 2011. The value of employment discrimination class action settlements also increased four-fold in 2010 over 2009 and the top ten settlements of wage & hour, ERISA, and governmental enforcement class actions increased to $1.16 billion, the highest amount ever.